IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 409 of 2022

Appellant: Shah Nawaz @ Shani through Mr. Muhammad Ameen Suleman advocate

The State: Through Mr. Khadim Hussain, Additional Prosecutor General Sindh

Complainant: Mst. Farhana in person

Date of hearing: 14.09.2022

Date of judgment: 14.09.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant has attempted to commit rape with his step daughter baby Saira, aged about 11 years, for that he was booked and reported upon. After due trial, the appellant for offence punishable under Sections 376 read with Section 511 PPC was convicted and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs.100,000/- and in default whereof to undergo simple imprisonment for 03 months with benefit of Section 382-B Cr.PC, by learned III-Additional Sessions Judge, Karachi South, vide judgment dated 14.04.2022, which is impugned by the appellant before this Court by preferring the instant appeal.

2. At the very outset, it is stated by the learned counsel for the appellant that he would not press the disposal of his appeal on merits, provided the sentence awarded to him is reduced to one which he has already undergone, which is not opposed by learned Addl.PG for the State, who is also assisted by the complainant.

3. Heard arguments and perused the record.

4. It was stated by PW/victim baby Saira that whenever she was using the bathroom she was being followed by the appellant, who used to insert his finger on her urine place. She in that respect is supported to large extent by her mother, the complainant. Excepting DNA report, their evidence takes support from ancillary evidence. If for the sake of arguments, the evidence of the PW/victim and the complainant is believed to be true, then it constitutes an offence of outraging the modesty of P.W/victim baby Saira, which is punishable u/s 354 PPC.

5. In case of Muhammad Sharif vs. The State (1986 P.Cr.L.J 2496), it has been held by the Honourable Federal Shariat Court that;

“……..from the record as demonstrated above the appellant was at the most trying to make Mst. Parveen naked by unfastening the Shalwar. He did not succeed in the attempt of removal of the Shalwar and did not take away his own Shalwar. The Shalwar of Mst. Parveen was not even torn (it has not been even alleged). In these circumstances it cannot be held that the appellant had been guilty of the offence under section 11 or 10 (3) A read with section 18 of the Ordinance and in our opinion has been guilty of offence under section 354, P.P.C. and can be convicted and sentenced under that section. We accordingly allow this appeal, set aside the conviction and sentences under section 11 and 10 (3) read with section 18 of the Ordinance and convert the conviction to one under section 354, P.P.C. and sentence him to the sentence, already undergone by him…..”

6. In view of above, the punishment awarded to the appellant for an offence under Section 376 read with Section 511 PPC is converted to one under Section 354 PPC consequently, he is convicted and sentenced to undergo rigorous imprisonment for 02 years and to pay fine of Rs.20,000/- and in default whereof to undergo simple imprisonment for 01 month with benefit of Section 382-B Cr.P.C.

7. Subject to above modification, the instant criminal appeal is dismissed.

JUDGE